CINDY A. COHN, ESQ.; SBN 145997
McGLASHAN & SARRAIL
Professional Corporation
177 Bovet Road, Sixth Floor
San Mateo, CA 94402
Tel: (415) 341-2585
Fax: (415) 341-1395
Attorney for Plaintiff
Daniel J. Bernstein
FRANK W. HUNGER
Assistant Attorney General
MICHAEL J. YAMAGUCHI
United States Attorney
MARY BETH UITTI (Cal. SBN 64452)
Assistant United States Attorney
VINCENT M. GARVEY
ANTHONY J. COPPOLINO
Department of Justice
Civil Division, Room 1084
901 E Street, N.W.
Washington, D.C. 20530
Tel. (Voice): (202) 514-4782
(Fax) : (202) 616-8470 or 616-8460
Attorneys for the Defendants
UNITED STATES DEPARTMENT OF
STATE et al.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO HEADQUARTERS
DANIEL J. BERNSTEIN, ) C 95-0582 MHP
)
Plaintiff, )
) AMENDED
v. ) STIPULATION FOR TEACHING
) DURING THE SPRING 1997
UNITED STATES DEPARTMENT OF ) SEMESTER
STATE, et. al., )
)
Defendants. )
)
________________________________)
This agreement is made between the Defendant Secretary of
Commerce (who is now the authorized licensing official in this
area) (through counsel or his designee) (hereafter "the
Secretary") and the Plaintiff (both hereafter referred to as "the
parties") in lieu of Plaintiff seeking a Temporary Restraining
Order or Preliminary Injunction with regard to his teaching
activities for the Spring 1997 cryptography course at the
University of Illinois at Chicago (hereafter "UIC") called
"Topics in Computer Science: Cryptography," Course Number MCS
494) (hereafter the "Spring 1997 course"). This stipulation
concerns solely plaintiff's teaching activities for the spring
1997 course, and is effective until the conclusion of plaintiff's
Spring 1997 course on May 10, 1997.
1. The Secretary hereby agrees that no license or other
authorization would be required, and, accordingly, the Secretary
would not initiate administrative enforcement proceedings for a
civil penalty nor seek the imposition of criminal sanctions,
during the Spring 1997 semester or thereafter, based on:
(a) Plaintiff engaging in classroom lecture and discussion
in his Spring 1997 course about encryption items, including
instruction about theory and use of encryption items, or for
providing lecture notes and related teaching materials to both
U.S. and foreign students for purposes of instruction in the
Spring 1997 course, including (subject to para. 1(b) below) providing
or making available encryption software (including source code)
to his students in this course, except that any encryption
software (including source code) provided or made available to
students in the Spring 1997 course remains subject to the "EI"
controls with respect to its export from the United States as
provided under the EAR; and
(b) Plaintiff's creation of a "Controlled Class Site" on the
UIC computer network (hereafter "site") as one means of providing
or making available encryption software (including source code)
to students in the Spring 1997 course, which provides for the
following features:
(1) The Controlled Class Site shall reject Internet
addresses outside 128.248 and 131.193, the IP addresses for
machines on the University of Illinois at Chicago computer
network; and (2) Access to the site, by means of a UIC
computer as described in (1) above, through an initial page
or screen containing: (i) a notice that the site includes
cryptographic software subject to export controls under the
Export Administration Regulations, and that anyone obtaining
such software from the site cannot export the software
without a license; and (ii) a mechanism enabling those who
access the initial page or screen to affirmatively
acknowledge the foregoing notice before proceeding.
It is the parties' understanding that all computers that are part
of the UIC computer network are located in the United States and
that the network does not provide for a host link to a computer
outside of the United States. The provisions of this paragraph
are agreed to by the Secretary for the sole purpose of
temporarily addressing the circumstances involving the
plaintiff's Spring 1997 course, and do not constitute a binding
construction or application of governing regulatory requirements,
including under 15 C.F.R. 734.2(b)(9)(ii), in connection with
any other matter.
2. The parties agree that if Plaintiff takes any other
action that the Secretary determines is contrary to the Export
Administration Regulations, the Secretary is not precluded from
initiating administrative enforcement proceedings for a civil
penalty nor from seeking the imposition of criminal sanctions.
3. This agreement is entered into between the Secretary of
Commerce (through counsel or other designee) and Plaintiff solely
with respect to the Plaintiff in this action, Daniel J.
Bernstein, and has no effect or precedent as to any other
individual or entity.
4. Reservation of Positions:
(a) Plaintiff: Based on the foregoing provisions, plaintiff
agrees that he will not separately seek a Temporary Restraining
Order or Preliminary Injunction with regard to his teaching
activities for the Spring 1997 course. Plaintiff expressly
retains the right to raise the issue of the impact of the export
controls on the teaching activities of plaintiff and others
similarly situated in the context of his wider challenge to the
facial constitutionality of the export controls. By this
agreement, the Plaintiff does not concede that the terms herein
are lawful as a matter of statutory or constitutional law, and
specifically preserves all claims, positions, and arguments he
has or may raise in this action.
(b) Defendants: By this agreement, the Secretary of
Commerce, and any other named defendants who may remain in this
case, do not concede that the application of any export
regulation under the EAR to encryption items, including software
and technology, are unlawful as a matter of statutory or
constitutional law, nor waive any defense, position, or argument
that has been or may be raised in this case. Defendants retain
all substantive, jurisdictional, and procedural defenses to any
claims that have been or may be raised by plaintiff in this
action. In addition, the Secretary of Commerce and any other
defendants do not by this agreement concede or acknowledge that
there is any legal basis for the entry of any judgment or
injunction by a court, including a temporary restraining order,
preliminary injunction, permanent injunction, or declaratory
judgment enjoining or declaring invalid any aspect or provision
of the Export Administration Act, Export Administration
Regulations, the International Emergency Economic Powers Act,
Arms Export Control Act, the International Traffic in Arms
Regulations, or any other law or regulation, including those
provisions referenced herein.
5. This Stipulation contains the entire agreement between
the parties hereto with regard solely to Plaintiff's teaching
activities during the Spring 1997 course. It is executed without
reliance upon any additional representation of either party.
For Defendants: For Plaintiffs:
DATE: (written) February 27, 1997 DATE: (written) February 28, 1997
FRANK W. HUNGER McGLASHAN & SARRAIL
Assistant Attorney General Professional Corporation
MICHAEL J. YAMAGUCHI
United States Attorney
(signed) Anthony J. Coppolino (signed) Cindy A. Cohn
VINCENT M. GARVEY CINDY A. COHN
ANTHONY J. COPPOLINO McGLASHAN & SARRAIL
Department of Justice Professional Corporation
Civil Division, Room 1084 177 Bovet Road, Sixth Floor
901 E Street, N.W. San Mateo, CA 94402
Washington, D.C. 20530
ORDER
IT IS SO ORDERED:
3/4/97 (signed) (illegible)
_______________________________
United States District Judge